//
[2026] FWC 1134
General information, not legal advice.
Fair Work Commission
2026-04-01
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - application dismissed
[1] Jackie Du has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). For some 23 years, Mr Du was employed by Australian Postal Corporation (Australia Post) as a postal delivery officer (PDO). He worked at the Templestowe Delivery Centre. On 12 December 2025, Mr Du was summarily dismissed after Australia Post concluded that on numerous occasions in late July and early August 2025 he had ridden his motorcycle at excessive speeds on footpaths, and that on 13 occasions from June to August 2025 he had not been performing his duties during his daily delivery rounds. Mr Du said that his actions did not amount to misconduct, that dismissal was a disproportionate response, and that his dismissal was unfair. He seeks reinstatement or compensation.
[2] Mr Du submitted a short witness statement and gave brief oral evidence. He also relied on his F2 application and written submissions. Mr Du said that on 5 August 2025, he sustained an injury at work after falling off his motorcycle, and that an investigation concluded that he had been riding too fast and unsafely, and that there had been a number of other occasions when he had been speeding in recent weeks. Mr Du said that it was also put to him that there had been 13 gaps in his delivery times during his daily rounds, and that he had not been undertaking his duties as required. He said that a further allegation was made that he had failed to comply with a direction that he keep the investigation into these matters confidential.
[3] Mr Du said that he had never intended to speed, that he had not been warned about speeding previously, and that if he had been warned he could have made adjustments. Mr Du said that although he had received some training, none of it had involved riding a motorcycle. He acknowledged that he was aware of the 10km per hour speed limit that applies to riding a postal motorcycle on the footpath but said that it was not always possible for him to monitor his speed while at the same time looking out for people on the footpath ahead.
[4] Mr Du agreed that there had been some gaps in his daily round reports but said that the gaps were due to his workload and his sore back, and the fact that the areas of the delivery rounds had recently been enlarged, and that there was now more to do. He denied that he had been 'hanging out', a term used at Australia Post for not working or dragging out a shift to trigger overtime. He said that he had been working as he had always done over the years, save that now there was more work. Mr Du said that he had always tried to make his deliveries on time but that there were time pressures and other factors, such as road conditions, that affected his ability to do this. He said that he had always worked to the best of his ability and that Australia Post dismissed him without any consideration of the operational realities of riding a postal motorcycle.
[5] Mr Du said that it was unfair for Australia Post to dismiss him for speeding, when he had not been warned about this previously, and for failing to perform his duties, which was not true. Mr Du said that he had not intended to breach the direction to keep the investigation confidential and had only meant to tell other workers about the fact that the telemetric data used by Australia Post could detect speeding and that workers could be penalised for unsafe behaviour. Mr Du said that it was harsh to dismiss him given his lengthy service and because of the significant personal and financial impact of the dismissal, and that Australia Post should have considered other disciplinary options such as counselling or transfer to a different position. Mr Du also said that he believed that his accident on 5 August 2025 caused Australia Post to view him as a liability, and that it was also worried that he had raised various concerns about working conditions in his role as a health and safety representative. Mr Du also submitted that the telemetric data could be used by managers to bully workers. He tendered a union bulletin warning workers that telemetric data could be used to 'spy' on them.
[6] Gary Carolan is a postal delivery coordinator employed by Australia Post at the Templestowe Delivery Centre. He was Mr Du's immediate manager. Mr Carolan gave evidence that PDOs at Australia Post are required to prepare delivery estimates in two hour blocks for each day, that deliveries are tracked electronically, and that as a coordinator he receives a daily report, known as the 'two-hour ETA report', which shows delivery times and their alignment with expected arrivals. Mr Carolan said that he reviews these reports each day to see how PDOs have been performing and uses them for coaching purposes. Mr Carolan also said that PDOs are required to observe safety standards and that they must obey the law when riding their motorcycles, including on the footpath where the speed limit is 10km per hour, and that PDOs are required to undertake safety training every two years.
[7] Mr Carolan said that from June to August 2025 there were 13 occasions on which there were long gaps between scans on Mr Du's rounds. The details of these 13 instances were later set out in one of the allegations that was the subject of a disciplinary investigation (allegation 5), which is addressed further below. The details of the 13 gaps were as follows (residential addresses are omitted):
[8] The source of this data was Australia Post's electronic systems that record movement and scanning. All bar one of these items showed a number of 'points', ranging from 4 to 157, which indicate the number of available delivery points in the relevant location. Mr Carolan said that to his knowledge there were no faults with the system and that no complaints had been raised about the accuracy of data produced by them. Mr Carolan said that on each of these 13 occasions he met with Mr Du and asked him to explain the gaps in his working day, but Mr Du was not able to provide a satisfactory account of what he was doing during these periods. Mr Carolan wanted to understand whether anything had held up a delivery but in response to his questions Mr Du was vague and evasive. Mr Carolan's evidence was that there are legitimate reasons that can explain gaps, but Mr Du did not provide him with any such reasons. Mr Carolan thought that Mr Du was simply not working at these times.
[9] Mr Carolan gave evidence that on 30 July 2025, he met with Mr Du and told him that he wanted clarification of four scanning gaps from the previous day of between 36 and 58 minutes in duration but Mr Du said that he was not going to answer. Mr Carolan asked Mr Du if he was refusing to answer his questions. Mr Du then said that during the 46-minute gap he had been speaking with a customer about her husband's health, and that this was the cause of the gap. Mr Du then said that he felt targeted and stressed and went home. This was reported to human resources. I note that the four gaps on 29 July 2025 were not included in the list of 13 gaps in allegation 5. Instead, Mr Du's refusal to answer Mr Carolan's questions about these four gaps became the subject of allegation 4.
[10] Vikas Sharma is a delivery manager at the Templestowe Delivery Centre. Mr Sharma gave evidence that when there are continuous gaps in the delivery data, Australia Post will have a concern that the PDO is not working or is deliberately dragging out the delivery time in order to become eligible for overtime, known as 'hanging out'. Mr Sharma also said that PDOs must obey road safety rules, including the 10km per hour speed limit on footpaths set by law, and that PDOs have a telemetric device connected to their motorcycles that records their driving, including their speed and any impact or sudden braking. Mr Sharma said that all PDOs undertake rider training, which is a full day of motorcycle training covering road rules and safety requirements. Every two years PDOs must also undertake further safety training.
[11] Mr Sharma said that on 30 July 2025, Mr Carolan told him that Mr Du had significant gaps in his scanning times from the previous day, and that he and Mr Carolan met with Mr Du to discuss the report. Mr Carolan showed Mr Du the report and asked him about the gaps and whether anything had happened the previous day to cause them. Mr Du said that on one occasion he was talking to a customer but then said that he was being asked too many questions, that he was stressed, and that he was going home for the day. Mr Du did not come to work on the following two days. The events of the meeting were reported to Kon Kakarantzas, the area manager, who told Mr Sharma to raise the matter with human resources, which he did.
[12] Then on 5 August 2025 Mr Sharma received a telemetric alert that Mr Du's motorcycle had rolled over. Mr Sharma's evidence was that he reviewed the footage and saw that Mr Du had been travelling too quickly through a roundabout and had fallen off his motorcycle. Mr Sharma also saw that at another time during the day Mr Sharma had been driving at 22km per hour on the footpath, over double the speed limit. Mr Sharma was concerned that there had been two incidents on the one day and checked the telemetry data. This showed that Mr Du had been speeding on 5 occasions during the previous week: three times on 25 July 2025, at speeds of up to 20km per hour; and twice on 29 July 2025, at 17km and 21km per hour. (These incidents later formed allegations 2, 3 and 6.) Mr Sharma said that this was of particular concern to him, and that he updated his earlier report to human resources about the unexplained gaps in Mr Du's delivery times to include the information about his repeated speeding.
[13] Mr Sharma said that on 11 September 2025, human resources sent him a notice of inquiry setting out the formal allegations against Mr Du, which he then provided to Mr Du. Mr Du was directed to undertake indoor duties until the completion of the inquiry. The notice stated that Mr Du was not to discuss the inquiry with colleagues, and that the only people at Australia Post with whom he could discuss the matter were the inquiry officer, his support person, and the union delegate, and that Australia Post took the confidentiality requirement very seriously. Mr Sharma's evidence was that shortly after arriving for work on 12 September 2025, he saw Mr Du holding the notice of inquiry and addressing team members about its content; that he heard Mr Du say that he was being 'coded' (punished) by Mr Sharma because he had gone over the speed limit; and that he saw Mr Du hand the notice of inquiry around to other workers. Mr Sharma's evidence was that he felt victimised by this conduct because Mr Du was telling other employees that Mr Sharma was targeting him when he was only doing his job. Mr Sharma then reported this to human resources. A new notice of inquiry was issued to Mr Du to include an allegation that he had contravened the direction to maintain the confidentiality of the investigation.
[14] Mr Kakarantzas gave evidence that Australia Post places significant trust in PDOs due to the nature of the job whereby they work unsupervised for a large part of their shift, and that it is a breach of this trust if a PDO is dragging out their shift or otherwise not performing their duties. He also said that PDOs are subject to the legal speed limit for postal motorcycles when riding on the footpaths which is 10km per hour. He said that travelling over this limit increases the stopping distance in case of an emergency, such as a person or a car suddenly appearing on the footpath. Mr Kakarantzas said that Mr Sharma told him of his concerns about the gaps in Mr Du's rounds and about his speeding on the footpath, that he told Mr Sharma that these matters should be referred to human resources, and that a disciplinary inquiry then began.
[15] Mr Kakarantzas said that on 25 November 2025, he received the report of the disciplinary inquiry that had been prepared by Frank Luca, a facility manager from a different delivery centre. The report concluded that seven allegations against Mr Du were substantiated and recommended that Mr Du be dismissed. The allegations were that on 5 August 2025 Mr Du had ridden his motorcycle on the footpath at 22km per hour on one occasion, and at 18km on another (allegations 2 and 3); that on 30 July 2025 he had refused to answer questions about gaps in his delivery reports (allegation 4); that on 13 occasions from June to August 2025 he had given unsatisfactory answers to Mr Carolan about gaps in his reports which indicated that he was not performing his duties as required (allegation 5); and that on five occasions from 23 to 29 July 2025 he had ridden his motorcycle in an unsafe manner by exceeding the speed limit on the footpath or nature strip, and on one occasion had ridden into oncoming traffic (allegation 6). Two other allegations found to be substantiated were that Mr Du had told his manager that he had reported experiencing backpain to the lockup officer, when he had not done so (allegation 1); and that he had breached the confidentiality required of him in respect of the investigation (allegation 7). Mr Luca's report recorded Mr Du's responses to questions that had been put to him during the investigation. The report was provided to Mr Du.
[16] Mr Kakrantzas said that on 28 November 2025 he met with Mr Du to discuss his response to the report. A Vietnamese interpreter was present. Mr Du told Mr Kakarantzas that he had been performing his job safely but later said that he had made a mistake by speeding on the footpath. Mr Kakarantzas did not believe that Mr Du thought he had done anything wrong and that his admission of having made a mistake was not sincere. Mr Du said that he had not been 'hanging out' and that this allegation was 'speculative'. Mr Kakrantzas did not agree that the report was speculative because it was based on scanning and telemetric data that reflect objective recordings. Mr Kakarantzas's evidence was that he had seen data that showed Mr Du's motorcycle was stationary or switched off or had deviated from the route at times when he was supposed to be making deliveries. Mr Kakarantzas also said that he was very concerned about Mr Du's speeding on footpaths and that this caused significant organisational risk to Australia Post. He considered that Mr Du had not shown remorse or accountability for his conduct. Mr Kakarantzas said that he agreed with Mr Lucas's recommendation that Mr Du's employment be terminated. On 11 December 2025, Mr Kakarantzas called Mr Du and told him that he had decided to terminate his employment and shortly afterwards a letter was sent to Mr Du confirming his summary dismissal.
[17] Mr Luca gave evidence about the disciplinary inquiry that he conducted, his interview with Mr Du, and the preparation of his report. Mr Luca said that on 2 October 2025, he met with Mr Du and took him through the allegations and asked for his responses to each of them. In relation to the allegations of unsafe driving, Mr Du said that he knew that he should not have been speeding but that he was not delivering at the time and there was no one around him, which Mr Luca thought showed a lack of accountability. Mr Luca's evidence was that Mr Du also told him that on one of the occasions he had been going to KFC, which was not an authorised activity, and that he was 'never in danger' despite going 20km per hour on the footpath while rounding a corner. Mr Du also remarked that speeds of 15 to 20km per hour on the footpath were low speeds and were not reckless.
[18] As to the allegations of gaps in Mr Du's work schedule, Mr Luca said that he was conscious that Mr Du might not be able to remember exactly what he was doing on each of the 13 occasions as these were now some time in the past, however he still expected Mr Du to be able to provide him with a general indication of why the gaps may have been present, however Mr Du could not do this. Mr Luca said that the responses that Mr Du did give were completely unsatisfactory. For example, Mr Du blamed the weather for some of his gaps, but Mr Luca's inquiries showed the weather to have been standard on those days. Mr Du said that at other times there was a large volume of mail or of unaddressed mail, but when Mr Luca checked, Mr Du's volumes of mail and unaddressed mail were lower than average. Mr Luca said that he did not find Mr Du's explanations credible, and that Mr Du was not able to provide any appropriate justification for the numerous gaps in the records of his working day.
[19] The allegations raised against Mr Du were serious ones. In making my factual findings, I have therefore applied the principle in Briginshaw v Briginshaw [1938] HCA 34, whereby the gravity of a matter that is alleged must be taken into account when determining whether one is satisfied that the matter has been proved to the civil standard.
[20] First, I find that on the 13 occasions identified by Australia Post, Mr Du was not performing his duties as required. I accept the evidence of Mr Carolan that on or shortly after the dates in question he discussed the 13 gaps with Mr Du and that Mr Du was unable to account for his time. While there can be legitimate explanations for gaps appearing in the workday data, Mr Du was unable to identify any to Mr Carolan. Mr Du gave explanations for some of the gaps when questioned by Mr Luca, but Mr Luca examined each of these in his report and found none of them persuasive, including because they were contrary to Australia Post's records of work volumes, which I accept. I have read the report and find Mr Du's responses unconvincing. For some gaps it is difficult to conceive what explanation there could possibly have been other than idleness, such as what Mr Du was doing at KFC on 18 June 2025, and why his motorcycle remained stationary for lengthy periods on other occasions, including in one instance not moving for 28 minutes outside an address that was not on Mr Du's round. I do not propose to go through the other responses of Mr Du that are set out in the investigation report. Mr Luca explains in the report his reasons for not accepting them. I agree with these reasons. I do not accept Mr Du's statement that the gaps are explainable by the enlargement of the delivery rounds and an associated increase in work. For one thing, Mr Luca said, and I accept, that work volumes were adjusted to account for the geographical enlargement of the rounds. For another, it does not make sense to me that more work would cause more gaps; if anything, one would expect it to show more activity, not less. I find that Mr Du was not working on the 13 occasions referred to by Australia Post. Mr Du said that he was always working, and that he did not know that he had done anything wrong, but I do not accept this. Australia Post trusts its PDOs to perform their duties on delivery rounds unsupervised. Taking unauthorised breaks during delivery rounds is a serious breach of that trust.
[21] Secondly, I find that twice on 5 August 2025, and on the other 5 occasions referred to in allegation 6, Mr Du exceeded the legal speed limit while riding his Australia Post motorcycle on public footpaths, and that he did so by the margins recorded in the telemetry data; and that on 23 July 2025 Mr Du rode his motorcycle unsafely by turning into oncoming traffic. I accept Mr Sharma's evidence about his use of Australia Post's data and that he was not aware of any technical problems with it. I find that the data is reliable. Mr Du initially queried this in his response to Australia Post but there is no evidence of any faults with the systems. Mr Du said that he could not always drive at the speed limit and also look out for pedestrians, but I do not accept that it is necessary to watch the speedometer in order to know whether one is travelling below the speed limit. Exceeding 10km per hour while riding a postal motorcycle on a footpath is illegal. It is prohibited by the Road Safety Rules 2017 (Vic) (see r 288(5A)). It is also unsafe. The video evidence illustrates this reality. On one occasion Mr Du can be seen riding at speed on the footpath and having to break suddenly at a blind corner when he encounters a woman walking her dog. I find that Mr Du's speeding on the days in question posed a real risk to public safety, and to Mr Du's own safety. Over a period of some 10 days, Mr Du exceeded the speed limit on numerous occasions. This was misconduct and provided Australia Post with a second valid reason to dismiss him. Australia Post has a duty of care to its employees to ensure that they are safe at work, and a duty of care to the general public to ensure that its employees drive safely and do not pose a risk to them. I further find that Mr Du lacks insight into the importance of riding below the speed limit. In his written response to the allegations, Mr Du said that a speed of 15 to 21km an hour was a low speed similar to a jogging pace and that it was not dangerous. It is in fact a fast running pace, which when undertaken on a motorcycle on a footpath is unlawful and dangerous.
[22] Thirdly, I find that on 30 July 2025, Mr Du refused to answer Mr Carolan's question about what he had been doing during the four significant gaps the previous day. A partial answer was given in respect of one of these gaps, but no response was given in respect of the other three, and Mr Du proceeded to go home. I do not consider that there was any acceptable reason for Mr Du to do this. I note that Mr Du later submitted a medical certificate for his absence on this day and the following two days, but this is not sufficient to justify his refusal to answer the question.
[23] Fourthly, I accept Mr Sharma's evidence that he saw and heard Mr Du discussing the inquiry investigation notice with other workers. I find that he thereby refused to follow the direction in the inquiry letter that he observe the stipulated confidentiality requirements. Although the union delegate was present, and Mr Du was permitted to discuss the investigation with him, he was not allowed to discuss it with others, which he did. Mr Du said that, because English is not his first language, there had been some misunderstanding about the requirement of the confidentiality direction. I do not accept this. The instruction in the letter was clear and simple. Having heard Mr Du's English in the course of this proceeding, during which he ably represented himself with minimal assistance from an interpreter, it is simply not credible to suggest that he did not understand the direction. Further, at his meeting with Mr Kakarantzas on 28 November 2025, at which an interpreter was present, Mr Du did not say that he had not understood the confidentiality instruction, but instead that he wanted to remind workers of the 10km per hour speed limit on the footpath. I find that the direction was lawful and also reasonable because among Mr Du's coworkers there could reasonably be expected to be persons who might need to be involved in the investigation, including by providing evidence, and any prior discussions about the subject matter of the investigation with Mr Du could compromise the integrity of the process. This was also misconduct and a valid reason for dismissal.
[24] Fifthly, I find that there is no evidence to support Mr Du's hypothesis that following his accident on 5 August 2025, management saw him as a liability, or that this was a contributing factor in Australia Post's decision to dismiss him. I find that the reasons for Mr Du's dismissal were those set out in the termination letter.
[25] In light of these findings, it is unnecessary for me to consider the other allegation that Australia Post found to have been substantiated by its investigation, which was that Mr Du had not reported a back injury to the lockup officer, contrary to his advice to management. I also find it unnecessary to make a finding in respect of Australia Post's contention at the hearing that Mr Du's responses to it during the investigation were dishonest, which, if proved, would be another valid reason for dismissal. It is sufficient to engage s 387(a) that the Commission conclude for itself that there was one valid reason for dismissal. In this case there were several. It is not necessary that all of an employer's allegations or reasons for dismissal be substantiated.
[26] Australia Post considered that Mr Du's conduct amounted to a contravention of its 'Our Ethics' policy. I find that this is the case. I will not set out the relevant provisions, however, because irrespective of any contravention of policy, the conduct entailed misconduct that amounted to valid reasons for dismissal.
[27] I find that Mr Du was notified of and had an opportunity to respond to the valid reasons for dismissal (ss 387(b) and (c)), both in writing and orally, through the investigation process. There was no refusal to allow Mr Du to have a support person present at discussions relating to dismissal (s 387(d)). The dismissal related to conduct, therefore warnings in relation to poor performance (s 387(e)) are not relevant. Australia Post is a large employer, and I do not consider that the matters in ss 387(f) and (g) have any significance in this matter.
[28] As to other matters that the Commission considers relevant (s 387(h)), Mr Du emphasised that he had not been warned about speeding, but in my view it should not be necessary to warn a postal worker not to exceed the speed limit when riding a motorcycle on the footpath. I note that telemetric alerts are not sent to management in the event that the speed limit is exceeded, and while speed is recorded, this data is continuously overridden. It is not the case that Australia Post ignored alerts about Mr Du's speeding. Mr Du was not explicitly warned about not working for periods of his shift, but again I consider that one should not have to be warned not to do this.
[29] I take into account that Mr Du worked for Australia Post for 23 years and that until recently it appears that he had a good record of service. His dismissal has taken a significant toll on him. However, the valid reasons for dismissal were serious matters which include conduct that created a serious and imminent risk to health and safety, both for members of the public and Mr Du, and for failure to carry out duties that amounted to wilful idleness, as well as a contravention of a lawful and reasonable direction. At least the first two of these matters amounted to serious misconduct, and in my view summary dismissal, while a heavy penalty, was not a disproportionate response.
[30] Further, I do not consider that Mr Du has displayed insight into the seriousness of his conduct, particularly his safety contraventions, which he openly questioned by describing his speeding as a mere 'jogging' pace that was not dangerous and by saying that he was never at risk. In addition, although Mr Du's long service warranted an expectation that Australia Post would not lightly reach a decision to dismiss him, it is also the case that an experienced postal worker such as Mr Du should know how important it is to ride safely and below the legal speed limit, to work continuously during his rounds when not on authorised breaks, and to follow directions. Dismissal was not the only disciplinary response available to Australia Post in this matter, but it was not a harsh one in the circumstances. The Commission does not stand in the shoes of the employer and ask what it would have done in the circumstances. In my opinion, dismissal was within the range of reasonable responses. This is so despite Mr Du's long period of service.
[31] I conclude that Mr Du's dismissal was not harsh, unjust, or unreasonable and that it was not unfair. The application is dismissed.
Printed by authority of the Commonwealth Government Printer
Jackie Du
Australian Postal Corporation [2026] FWC 1134